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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewart v Waud [1838] CS 16_408 (1 February 1838)
URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS0408.html
Cite as: [1838] CS 16_408
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SCOTTISH_Court_of_Session_Shaw
Page: 408↓
v.
Paterson.
Marshall.
Subject_Lease—Warrandice—Reparation.—
Near the close of a nineteen years' lease, the tenant raised an action against his landlord, alleging that a privilege of pasture, on a common, which was let along with his farm, had been encroached on by third parties for a series of years; the action concluded for damages, as to bypast years, on account of failure to maintain him in possession of the whole subjects let, and for decree to maintain him in possession in future:—Held, that, as no part of the tenant's possession had been evicted on account of any defect of right on the part of the landlord, and as any encroachment on the tenant's right had arisen from remissness on his part to defend himself, there was no ground for damages, and there had been no failure on the part of the landlord to implement the contract; and landlord therefore assoilzied with expenses.
Facts:
Charles Stewart, farmer, was tenant of Easter Pitgober, Perthshire, at a rent of £66, under a lease for nineteen years, from Martinmas 1818. The lease was granted in favour of his father, and on his father's death he succeeded. He enjoyed a privilege of sending certain bestial to pasture on a common, called Common-hill. It did not appear that before 1834, either his father or himself, ever complained to his landlord of this privilege being invaded by the other parties who had right to pasture
on the common. But in that year he raised an action against Andrew Wand and others, the owners of his farm, alleging that he had never been duly put into possession of the pasturage on Common-hill, and that he had thereby lost pasturage worth £10 or £12 per annum; and concluding that the defenders should be decerned to implement the contract of lease by giving him full possession of the pasturage, and also to pay £200 in name of damages for non-implement in times past. The defenders, besides various other defences, pleaded, that nothing had been let to the pursuer which had ever been evicted on account of any want of right or title on the part of the defenders or their authors: and that if the pursuer had suffered his pasturage to be encroached on, that only arose from his own remissness in defending his rights, and could not give rise to any claim against the defenders, especially as he never complained to them before the year 1834. The Lord Ordinary pronounced an interlocutor sustaining generally the pleas in law stated for the defenders, and assoilzieing them, with expenses.
The pursuer reclaimed; and the defenders explained that the defence which the Lord Ordinary meant especially to sustain, was that which is above stated.
The Court unanimously concurred in sustaining that defence, and made a slight alteration on the words of the interlocutor, so as to adapt it thereto. Quoad ultra, their Lordships adhered, and awarded additional expenses.
Solicitors: Wotherspoon and Mack, W.S.— Gibson and Donaldson, W.S.—Agents.